No. 82·738 FEB 18 J983 ~~~~~~~~~~~~~~~Rm;;~STl!VAS.

CLERK

In ttle

8Uprtmt Qtomt of tUt 1!tnittl1 a;taus OCTOBD Ti:RY, 1982

DR. ETHEL D. MIGRA,

vs.

THE WABREN CITY SCHOOL DISTRICT BOARD OF EDUCATION, et aI.,

Respondents.

On Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit

BRIll'r FOR EDWIN F. J4A.NDBL LEGAL AID

CLINIC AS AlIICll'S CUBlAB

GUY H. PALK EDWIN F. :.M'.urn:EL Legal Aid Clinic of the University of Chicago Law School and United Charities of Chicago Legal Aid Bureau-United Charities ot Chicago .

6020 South University Avenue Cbicago, ·Dlinois 60637 (312).·.·.3U-5181 A~ ,Of' Amicv8 CWise

NO. 82-738

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

DR. ETHEL D. MIGRA,

Petitioner,

v.

THE WARREN CITY SCHOOL DISTRICT

BOARD OF EDUCATION, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT.

BRIEF FOR EDWIN P. MANDEL LEGAL AID CLINIC

AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER,

DR. ETHEL D. MIGRA.

TABLE OF CONTENTS

Page

Table of Authorities ••••••••••••••••• i

Statement of Interest •••••••••••••••• iv

Summary of Argument •••••••••••••••••• l

~itC;~~~ ••••••••••••••••••••••••••••• 4

I. SECTION 1983 PROVIDES A CIVIL RIGHTS PLAINTIFF WITH THE RIGHT TO CHOOSE BETWEEN A FEDERAL AND A STATE FORUM TO PRESENT CONSTITUTIONAL CLAIMB ••••••••••• 4

A. The Purposes of

51983 Require That

Dr. Migra Be Allowed To Bring Her Civil Rights Action In Federal COurt •••••••••••••• 4

B. This Court Has Previously Allowed Civil Righta Plaintiffs To Litigate Federal Claims In Federal Court After Having Litigated Their State Claims In State Cour t •••••••••••••••••••••• 8

C. Comity Will Not Be Hindered By Federal Court Consideration of Civil Rights Claims FollowingState Court Consideration of Related State Law •••••••••••••••••••••••• 12

Page D. Because Dr. Migra

Bas Litigated OnlyHer State Law Claims, She Should Not Be Barred From Now Litigating Her 51983 Claims In Federal Court •••••••••••••••••••••• 18

Conclusion ••••••••.•••••••••••••••••• 24

ii

TABLE OF AUTHORITIES

Cases: Page

Allen v. McCurry, 449 U.S. 90 (1980) •.••••..••••••••••••• 2,10,11

Ashwander v. TVA, 297 U.S. 288 (1936) .•..•.............•..••.•..• 16

Board of Regents v. Tomanio, 446 U.S. 478 (1979) •••••••••••••••.•.• 18

Carey v. Piphus, 435 U.S. 247 (1,979) ••••••••••••••••••••••••• 7,24

Castorr v. Brundage, U.S. , 51 U.S.L.W. 3285~ct. 12: 1982) ••••••••••••••••••••.••.• 13,14

Chadwick v. Barbae Lou, Inc., 69 ohio St.2d 222 (1982) •••••••••• 19

England v. Board of Medical Examiners, 374 U.S. 411 (1963) .••....•.............. 1, 2,

8, 9, 11

Fair Assessment in Real Estate Ass'n v. McNary, ___U,S,___ , 102 S.Ct. 177 (1981) ••••••••••••••• 9

Kremer v. Chemical Construction Corp" ___U.S.___ , 50 U.S. L.W. 4487 (May 18, 1982} •••••• 15, 21,

22, 23

Mitchum v. Foster, 407 U.S. 225 (1972) .•.•.••..•••.•.•••.••.••..... 5

Monroe v. Pape, 365 U.S. 167 (1961) •••••••••••••••••.••••• 5, 6, 7

ents, _U.S • .;;;.....;;;;....;;..;;;;.."-;..;.....;;;;;..a~-r-............;~......,OI- (1982) ••••• 7, 16

Page

Statutes:

48 U.S~C. S1983 ••••••••••••• passim

42 O.S.C. S198S •••••••••••••19, 23

With the consent of the Petitioner and the Respondents, the Mandel LegalAid Clinic submits this brief as amicus curiae in support of the Petitioner, Dr. Ethel D. Migra.

STATEMENT OF INTEREST

The Edwin F. Mandel Legal Aid Clinic of the University of Chicago Law School, in existence since 1959, is dedicated to protecting againstand remedying deprivations of constitutionally protected rights. The Clinic regularly represents personswho bring civil rights claims against state and local government officials. Many of these claims involve both state and federal constitutional law issues. The application of traditional res judicata principles in Section 1983 actions would substantially restrict the availabilityof relief for those clients who first seek redress in the state courts.

iv

SUMMARY OF ARGUMENT

Civil ri9hts plaintiffs should

be permitted to present state law

claims to state courts and federal

law claims under 42 U.S.C. 51983

to federar courts. Allowing plaintiffs

this choice preserves the key federal

pur~ose of 51983. That purpose is

to insure that the federal courts

will-provide redress for violation

of federal constitutional rights

under color of state law. The Recon

struction era Congress that passed

51983 believed that neither state

legislators nor state judges could

be trusted to protect these rights.

tier. filing of purely state law claiJu

111 stabl coart ....141 DOt. override

til... ....••• ··oCltMI• ••••••, .. ,.......4 ....." ...

been allowed to litigate their consitu

tional claims in federal court after

litigating state claims in state

court. Under England, and more recent

ly under Allen v. McCurry, 449 U.S.

90 (1980), only relitigation of the

same claim has been barred.

Dr. Migra seeks only to litigate

constitutional claims she never raised

in her successful state contract

action. Allowing her to raise her

federal claims now will not provide

her with two opportunities to recover

the same damages. Plaintiff is enti

tled to be compensated separately

for violations of her constitutional

rights.

Also, coaity will be best served

by allowing plaintiff to litivate

ber federal CCJIUI;t.itati...l clais

..,....te~ ia ......&1 .... t-. ft1s

_ill Ie.u........... I.., .. lIIIcift

questions of state law and statutory

interpretation. Each court, thus,

will be allowed to decide questions

peculiar to the body of law over

which it is most familiar.

However, to apply a res judicata

bar to S1983 actions would have the

opposite effect. Forced to choose

between filing all their claims in

either federal or state court, many

S1983 plaintiffs would choose the

federal forum. As a result, federal

courts could become overwhelmed with

state claims best decided in state

court.

Dr. Nigra also should be able

to litigate ber federal clal. in

federal court because state court

.ilRDi.... bel' coaapil'att:y ....t. wit.hOGt.

pejlali... Ita.. I'esuit.. plaiat.i! f

........ 1'•• b rdiLle ..... _.u.

_~. alta. ..... lUIS U .........'.

own construction of res judicata

would bar plaintiff's current claim.

ARGUMENT

I. SECTION 1983 PROVIDES A CIVIL RIGHTS PLAINTIFF WITH THE RIGHT TO CHOOSE BETWEEN A FEDERAL AND A STATE FORUM TO PRESENT CONSTITUTIONAL CLAIMS.

A. The Purposes of S1983 RequireThat Dr. Migra Be Allowed To Bring Her Civil Rights Action In Federal Court.

A civil rights plaintiff should

be allowed to bring federal civil

rights claims before a federal court,

so long as those claims have not

first been litigated in a prior state

proceeding. The purposes behind

42 U.S.C. S1983 require such a con

cluaioft. At tbe .... tia., principles

of ca.ity ... _ Oft seftse argue

_i_it ....~..i .. el.-l1 ri"t.a liti

..... I.,.. qI;"aw ...1•••ate e!aiM »a_ .... ~1t.

The primacy of the federal courts

in adjudicating constitutional claims

unders1983 cannot be disputed.

Monroe v. Pape, 365 U.S. 167 (1961).

Congress, by interposing the federal

government as "guarantor of basic

federal rights,'"

opened the federal courts to private citizens, offering a uniquely federal remedy againstincursions under the claimed authority of state law upon rights secured by the Constitution and laws of this Nation.

Mitchum v. Foster, 407 U.S. 225,

229 (1972). The legislative history

of S1983 similarly evinces clear

congressional intent to "[alter]

the relationship between the States

and the Nation with respect to the

protection of federally created rights."

12.. at 242.

When a plaintiff chooses to

pursue his state law claims in state

court, he shou~d be allowed to preserve

his right to present his federal

constitutional claims in a federal

court. The determination of state

law claims should not act as res

judicata to federal claims which

were preserved for federal court

and not presented or litigated in

the state court. Any other result

would violate the purposes of 42

U.S.C. S1983.

In Monroe v. Pape, Justice Douglas

outlined three objectives of S1983.

First, it provided a means of overrid

ing certain state laws inimical to

the Constitution. Second, a remedy

would be provided when state law

is inadequate. Third, S1983 would

provide a federal remedy where the

state remedy, though adequate in

theory, is not available in practice.

365 O.S. at 173-74. Thus, the Court

concluded that exhaustion of state

- -

remedies was not required before

bringing an action for damages under

51983 as "[t]he federal remedy is

supplementary to the state remedy."

Id. at 183. Last term in Patsy v.

Board of Regents, u.s. ,73 L.Ed 2d 172 (1982), this Court reaffirmed

the determination in Monroe v. Pape,

365 U.S. 167 (1961) that civil rights

plaintiffs need not exhaust state

remedies before commencing S1983

actions.

Justice Harlan, concurring separ

ately, in Monroe, additionally made

clear the ·supplementary" nature

of the unique-ly federal relief provided

by 51983:

[A] deprivation of a constitutional right is significantlydifferent from and more serious than a violation of a state right and therefore deserves a different remedy even thoughthe same act may constitute both a state tort and the deprivation of a constitutional right.

Monroe v. Pape, 365 U.S. at 196 (emphasis

B. This Court Has PreviouslyAllowed Civil Rights Plaintiffs To Litigate Federal Claims in Federal Court After Having Litigated Their State Claims in State Court.

Twenty years ago, this Court

held in England v. Louisiana State

Board of Medical Examiners, 375 u.s. 411 (1963), that plaintiffs who 1iti

gated state law claims in state court

could retain a right to bring a separate

federal action to litigate issues

of constitutional law. Similarly,

Dr. Migra sought relief under Ohio

law in the Ohio courts. She now

seeks to vindicate her federal consti

tutional rights before a federal

tribunal.

In England, the plaintiffs had

been ordered into state court under

the Pullman abstention doctrine.

After the state court had deci~ed

the case, this Court refused to attaoh

preclusive effect to the judgment

of the state court on an issue of

federal constitutional law. In so

ruling, this Court emphasized the

fundamental importance of a plaintiff's

"right to litigate his federal claims

fully in the federal courts."ll 12. at 417.

England draws a "bright and

clear" line by which only those con

stitutional claims which have been

fully litigated in state court are

barred from subsequent relitigation

before a federal court:

I/This principle was most recently recognized in the concurring opinion of Justice Brennan in Fair Assess.ent In Real Estate Ass'n v. KcNary, ___U.S.

, 102 S.Ct. 177 (1981), In which Justices Karshall, Stevens and O'Connor Joined. There it was indicated that those challenging the c."stitwtio"ality of state tax lawl c•• ld at. re4l.frecll to first exh•• lt state ••• inlltratlve re..cIIJe. 1I·.'.re ••,I,."ln, a ' •••ral ac t 10.....,tt., 11,11. Itt s a.'lu••tt that "iof' , •••,t to tR. I,ta,t. forull '.' 'el1ef _ ..:hll na:t D. a Da,:r te

. t~t "",;i~ j·"...d

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[Wle see no reason why a party,after unreservedly litigatingclaims although not required to do so, should be allowed to ignore the state decision and start allover again in the District Court.

Id. at 419.

This position was also recognized

in Allen v. McCurry, 449 U.S. 90

(1980). There, this court held that

issues actually decided by state

courts should not be litigated again

in S1983 cases raised in federal

court. 12. at 95. Allowing Dr. Migra to pursue

her 51983 claim in federal court

is fully consistent with this Court's

holdinq in Allen. There, the Court

vas concerned vitb relitigation of

an i.aue already raised and decided

-.aias' the pet:.itiour i. ataUt court ••,_u.a., __ af Ik. Ki9J;.' • ....t1a;). .....aJ. daias ..r. lI..id••

...... __ .... ·Itie ..... itMue.. abe

permitting consideration of her federal

claims would raise nvne of the policy

concerns against relitigation highlight

ed in either England or Allen.

Also, allowing Dr. Migra to

raise her federal claims would not

provide her with an opportunity for

-two bites at the apple. R At no

time during a subsequent federal

court proceeding would she be allowed

to relitigate any aspect of her state

contractual dispute. Indeed, had

Dr. Migra raised any of her federal

claims at the state level, and had

those issues been decided by that

court, collateral estoppel would

bar her fro. raising those issues

anew in federal court under 119a3.

All!! v, !cCurry, 449 0.1. 90, 95,

184.

11

C. Comity Will Not Be Hindered By Federal Court Consideration of Civil Rights Claims Following State Court Consideration of Related State Law Claims.

Comity, too, can best be served

by district court consideration of

Dr. Migra's S1983 claim. Her federal

complaint raises only issues of federal

constitutional law, an area of obvious

federal court expertise. Permitting

Dr. Migra to raise her federal claim

in federal court will leave questions

of state law and statutory interpre.

tation to the state court, again,

the most expert forum. This is the

very essence of comity: each court

would be allowed to decide questions

pecul iar to the body of law over

whicb it ia JIOst faailiar.

hI' t.ME_"e, perai t t ia, Dr.

a19.a t.e ....ra. her st.... c~.i..

fr_ ,ae.. ral_ uanr 1.1.13 ia

"'I~_l~ed ~Il" "81\, geelal

or urgent need for finality. See,

e.g., Castorr v. Brundage, 51 U.S.L.W.

3285 (Oct. 12, 1982) (Stevens, J.,

concurring in the denial of certiorari).

There, the Court was asked to resolve

a dispute over parental rights.

At issue was the effect of a prior

state court adjudication on the sub

sequent filing of a S1983 claim in

federal district court.

Justice Stevens, agreeing with

thti Sixth Circuit, wrote that, because

of the special facts of the case,

the importance of finality was "com

pelling." Dr. Migra's case involves

none of the "compelling" facts at

issue in Castorr. First, that case

involved child custody, an area going

to the heart of the police power

of the state and one not customarily

heard by federal courts. Second,

prolonged litigation, he warned,

could have Ran adverse effect on

the emotional and physical health

of the child." 51 U.S.L.W. at 3285.

In Or. Migrats case, her rights under

her employment contract with the

Warren City School Board have been

finally and effectively dealt with.

Nor has Or. Migra aSked the federal

courts to upset this finding. Whatever

special interests the State of Ohio

had in adjudicating contract claims

between employees and governmental

agencies, these interests have been

met.

As a general policy concern,

the application of res judicata to

51983 will dramatically increase

the caseload of the federal district

court. Forced to choose between

an exclusively federal or state forum,

many 51983 litigants will file as

a matter of course in the federal

court in order to preserve the avail

ability of that forum.l l As a result,

the federal courts will be overwhelmed

by the unnecessary task of having

to sort through related state claims

best litigated in the state courts.

In addition, such a decision

will greatly diminish the possibility

of resolving potential federal con

stitutional claims without recourse

to the federal courts. As a matter

of jurisprudence, this Court has

historically reco~nized that constitu

l/In Kremer v. Chemical Construction ~, ".S. ,50 U.S.L.W. 4487 (Oct. rr,-198ir,-this Court held that res judicata must apply under 28 U.S.C. ¢1738 to Title VI I actions brought in federal court. Eve!"1 in tne year since then, counsel for amicus, who special izes in employment discrimination cases in Illinois, ha~ found that he and other attorneys are abandoning employment discrimination claims after adjudication by 111 inois' human rights agencies.

Tnen, they are commencing Title VI i

actions rather tnan allowing their

claims to reach state court.

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tional questions should not be passed

upon if there is "any other ground

upon which the case may be disposed

of." Ashwander v. TVA, 297 U.S.

288,346-348 (1936) (Brandeis, J.,

concurring).

In their opinions in Patsy v.

Board of Regents, Justices O'Connor

and Powell both recognized the impor

tant practical effect of mooting

potential federal claims through

the use of state administrative re

medies. 73 L.Ed.2d at 188 (O'Connor,

J. r concurring) 1 198 (Powell, J.,

dissenting). Both Justices agreed

that, by leaving the way clear for

resolution of potential federal claims

at the state level, state administra

tive procedures would help relieve

an already overburdened federal case

load.

16

At its worst, application of

res judicata to S1983 claims would

leave the federal courts in the anomo

lous position of deciding state law

claims. This outcome is clearly

inimical to the principles of comity

established by this Court.

A finding that res judicata

applies in this instance would produce

the ludicrous result that plaintiffs

would file useless federal court

actions only to have the court abstain

under the Pullman doctrine and remit

them to state courts to have state

claims decided. Such an obviously

inefficient procedure would land

the plaintiff in the identical position

as that now maintained by Or. Migra,

but only at a tremendous cost to

the district court in terms of time

and human resources.

17

A needless procedural run-around

such as this was rejected in Board

of Regents v. Tomanio, 446 U.S. 478

(1979) (Stevens, J., concurring).

There, Justice Stevens persuasively

argued that a plaintiff should not

be required to file simulataneously

in both federal and state court simply

in order to avoid a time bar under

a federal statute of limitations.

Such an exercise, he wrote, "make[s]

no sense to me in terms of either

federalism or judicial administration."

.!.9. at 493.

O. Because Or. Migra Has Liti gated Only Her State Law Claims She Should Not Be Barred From Now LitigatingBer S1983 Claims in Federal COurt.

Since Or. Migra litigated only

her contract claim in state court

her federal civil rights claim should

not now be barred. Plaintiff original

ly sued the Warren City District

School Board and three of its members

in the Ohio Court of Common pleas

under a common law claim of conspiracy

as well as under a breach-of-contract

claim. At the beginning of the trial

the judge, sua sponte, "reserved

and continued" plaintiff's conspiracy

count. Several weeks after the trial,

the state judge dismissed that claim

without prejudice.

In Ohio, a dismissal without

prejudice has no res judicata effect.

Chadwick v. Barbae Lou, Inc., 69

Ohio St.2d 222 (1982). Therefore,

plaintiff was free under Ohio law

to refile her conspiracy claim.

Instead, Dr. Migra filed a new

action in federal district court

under SS1983 and 1985. She alleged

that defendants reacted with "fierce

hostility" to her work as the head

of a teachers committee which was

formulating a controversial social

studies curriculum and her work as

director of a commission planning

desegregation of the Warren City

schools. As a result of this hosti

lity, defendants spread false and

malicious rumors about plaintiff's

private life and they breached plain

tiff's contract 9f employment. All

this was done, plaintiff contended,

"pursuant to a pre-conceived plan

to eliminate the plaintiff as the

Supervisor of Elementary Education

for th~ Warren City School District."

(Plaintiff's U.S. District Court

complaint, pp. 3-5).

Since plaintiff would not have

been barred by res judicata from

seeking redress in Ohio courts under

her conspiracy clai~, she should

be free to pursue this claim in federal ,

court.

- -

Furthermore, under this Court's

own definition of res judicata, plain

tiff would not be barred. "Under

res judicata, a final judgreent on

the merits of an action precludes

the parties or their privies from

relitigating issues that were or

could have been raised in that action."

Kremer v. Chemical Construction Corp.,

U.S. , 50 U.S.L.W. 4487, 4489

n.6. (May 18, 1982). Since the sta te

judge refused to hear plaintiff's

conspiracy claim, this matter neither

was litigated nor could it have been

litigated.

Allowing Or. Migra to pursue

her claim is also consistent with

this Court's reasoning in Kremer.

There, the Court held that a person

who fully litigated, and lost, an

employment discrimination action

in the agencies and courts of New.

York could not litigate his claim

under Title VII in federal court.

Writing for the Court, Justice White

noted that the elements of Kremer's

cause of action under Title VII were

"virtually identical" to the ele~ents

of his cause of action under New

York's employment discrimination

law. Thus, he concluded, the state

court's decision against Kremer "also

decided that a Title VII claim arising

from the same events would be equally

meritless." 19. at 4492. In this case, unlike Kremer,

the elements of plaintiff's state

claim are not the same as the elements

of her federal cause of action. To

win her contract dispute in state

court, Or. Migra only had to show

that the school board made a valid

offer which she accepted before its

recission. But technical issues

of offer and acceptance as applied

to municipalities in Ohio have little

in common with the elements of plain

tiffs' claims under S1983 and S198S.

Also, unlike Kremer, Dr. Migra

won her prior state court action.

The finding that the school board

breached her contract buttresses,

rather than defeats, plaintiff's

case. Therefore, unlike the situation

in Kremer, a federal court finding

in favor of plaintiff would in no

way clash with the state court deci

sion.

However, Dr. Migra has not been

compensated for the violation of

her constitutional rights and the

defamation she suffered as a result

of defendants' conduct. Even if

she could show no other actual inju

ries, she would be entitled to damages

for violation of her constitutional

rights. Carey v. Piphus, 435 u.s. 247 (1978).

CONCLUSION

For the aforementioned reasons

the judgment below should be reversed.

!

Gary H. Palm Edwin F. Mandel Legal Aid Clinic of the University of Chicago Law School and Legal Aid Bureau-United Charities of Chicago6020 South University Avenue Chicago, Illinois 60637 (312) 324-5181

Counsel for Amicus Curiae

24